Just when you thought it was never going to see the light of day, the body that pre-vets all UK TV advertising has published its new Guidance on the interpretation of the BCAP Television Advertising Standards Code. Are there radical changes and new insights?
Who: The Broadcast Advertising Clearance Centre
When: January 2006
In a double whammy, the UK's TV advertising vetting body, The Broadcast Advertising Clearance Centre ("BACC") announced a restructuring of the organisation and new guidance notes to the BCAP Television Advertising Standards Code ("Code").
The restructuring of the BACC, we are told, is designed to enable it to be an even more responsive customer-facing company to its clients. A focused and structured communication strategy has been developed and updates will apparently be issued on a regular basis to inform on various short-term and long-term BACC initiatives.
To reflect this, the BACC website (which was none too spectacular until recently) has been enhanced so as to have a recruitment section, provide weekly BACC statistics and "policy and operational updates." The website will also mention "the availability of BACC's consultants" although for what is unclear.
The new Notes of Guidance ("Notes") were certainly long overdue. They are to be found on the new website at www.bacc.org.uk. The last version had for some time been unavailable either online or in hard copy form and in any event was well out of date, since it dealt with the old ITC code.
The Notes, it says here, have been redesigned making them more user friendly and allowing the option of the easy insertion of updates and amendments on a rolling basis.
Here we will focus on some of the changes, although as ever a comprehensive read is recommended to enjoy the full delights.
New "Principles" section
Instead of the old "Introduction", the first section of the Notes starts with a statement of "Principles".
Here the basics are confirmed, such as the fact that the BACC does not clear sponsorship credits or interactive material. As before, the section reminds us that these Notes are for the use of advertisers, agencies and BACC member broadcasters in order to supplement and clarify where necessary the intentions of the rules contained in the Code.
We are reminded that the Notes should not be considered as containing legal advice unless explicitly stated and following on from this, a new "Liability" paragraph emphasises that the BACC "can accept no responsibility for any liability of any nature which may be incurred by advertisers or their agencies in connection with the broadcast, delay in broadcast or non-broadcast of any advertising submitted for clearance to BACC." Comfortingly, we are told that this exclusion does not apply to any liability which the BACC may incur "for death, personal injury or for fraud", but whatever the exceptions to the exclusions, there may in any event be a question mark over whether the BACC can wash its hands of responsibility in this way.
Concluding the Principles section, there is mention of an interesting departure for the BACC in terms of a recent project to "deliver an end to end digital delivery and tracking system for scripts and commercials". It is not clear whether this competes with similar systems such as those provided by organisations like AdStream, for digital storage and delivery of commercials.
Involvement in complaint handling
A "General points" section reminds us that the BACC will work with advertisers in preparing their responses in respect of complaints that might be received in respect of already broadcast ads. The BACC underlines however, that if at this stage further material information which has a bearing on the acceptability of the advertisement comes to its intention, the BACC's ability to defend the continued acceptability will be seriously undermined.
This can most commonly happen, it goes on, in the case of misleading advertising. In such cases the BACC states chillingly that it can act on its own initiative and instruct that the advertisement be removed from air as soon as possible. Presumably it will hope its earlier disclaimer of liability will apply if it turns out this was not the right step to take.
The "creative treatments" section is tweaked in a few areas.
In the "reference to living persons" section, the overall ban on portraying, caricaturing or impersonating living individuals is taken from the Code and slightly amplified, as is the exception for ads for news items or features in the press, books, films, radio or TV programmes about the persons concerned, provided the reference is not defamatory or offensive.
In a new gloss on this, the Notes say that "where a person has certain characteristics which are well known, then the risk of these being found offensive by that individual is likely to be lessened. It is not BACC's responsibility to make such decisions (although it is not clear from the Notes whose responsibility it is), the advertisers should put forward a compelling case, backed by a legal opinion where this might be helpful, for an exemption to be granted".
The old Section 1, focusing on the pre-clearance process, has now be relegated to Appendix 1 under the heading "Submitting Work to BACC". The Notes confirm the BACC's arrival in the twenty-first century by referring to its new digital system for work handling, which is now the preferred route. Those who do not have log-in for the digital system are urged to arrange one, but there is a secondary system via the BACC's website and a third route via email.
Other Appendices which did not previously feature in this form deal with scheduling restrictions at Appendix 2 (which includes a handy "Quick guide to performer and programme restrictions" in tabular form) and Guidelines for superimposed text at Appendix 3. Still more Appendices deal with Photosensitive epilepsy and flashing images, Cash with order agreements (previously at Section 7 of the Notes), Advertising and promotion of consumer products making anti-microbial claims and at Appendix 7 a Protocol for anti-perspirant effectiveness assessment by direct comparison of products.
Separation between ads and programmes
Instead of the old "Programmes and advertisements" Section 2.3, the new Section 3 gets to the heart of the matter in its title and is called "Separation between advertising and programming". This section has been reworked and features two helpful tabular "Quick guides". One focuses on restrictions on the use of programme elements, the other on "performer and programme restrictions".
Also in this part is a section headed "Interactive television services", but we are only told here that any guidance notes from the BACC on the topic will have to await updated guidance which is expected from the Broadcast Committee of Advertising Practice. It is not clear why the BACC must wait for the BCAP to give guidance before it publishes its own guidance and again this raises the question why we need two bodies guiding us.
Advertising and children
The "Advertising and children" section has been tweaked in various areas. For instance there are three new arrivals in the category of products that cannot advertise during children's programmes, religious products, lotteries, pools or bingo and fireworks.
In the "Safety in the home" section, additional advice is that where "child safety" features are incorporated in products, advertising must not demonstrate how these can be disabled. We are also advised that "care must be taken to avoid portraying hazards, such as ornately decorated fire surrounds at Christmas time". We are also advised that "babies should not be shown lying on their stomachs in cots or prams or lying in places where they might fall, or, if below 18 months, being left alone with a feeding bottle".
Re-worded "Medical claims" section
Instead of the old "Medicines, treatments and health claims" Section 5, we now have a new "Medical claims" Chapter 8. Fundamental changes have been made here and detailed reading is advised.
Food and drink
The "Food and drink" section has been updated in various areas. In an opening "Public policy" paragraph we are reminded that the Food Standards Agency has recommended to Ofcom a nutritional profiling scheme. As and when this is adopted by Ofcom, we are told, this will result in amendments to the Notes. Similarly at European level we are reminded that the issue of health and nutrition claims for food is under intense scrutiny and advertisers are advised to keep abreast of developments at both UK and EU levels. This is an interesting departure for these Notes and with so many areas of advertising regulation almost continuously under review at either UK or EU level, we query the point of these comments and exhortations.
New "Excessive consumption", "Comparisons and good dietary practice" and "Oral health" sections reflect current public concerns by underlining provisions in the Code prohibiting and encouraging or condoning excessive consumption of food. Generally accepted nutritional advice will be the yardstick, the Notes tell us, against which excessive consumption will be measured. In keeping with the Code prohibition on ads disparaging good dietary practice, ads should also not discourage the selection of food such as fresh fruit or vegetables which it has been recommended should form a greater part of the average diet.
The Genetically modified ingredients section has been reworded, but continues to say little more than that legislative changes may be forthcoming and advertisers should be alert to this possibility.
New wording in the "Energy claims" section tells us that there is some evidence that some products can either speed recovery from physical exhaustion or extend the time until that physical exhaustion sets in. Claims in this area, the Notes state, will have to be supported by good evidence and advertising targeted of the kind of viewer for whom the claimed benefit has been proven.
Slimming and weight control
Various changes have been made to the relevant section here. We are told that anyone featured in an ad as wishing to lose weight should clearly appear to be overweight, that for overweight people a weight loss greater than 2lbs a week is unlikely to be acceptable and that claims that people have lost specific amounts of weight must be compatible with good medical and nutritional practice.
New alcohol section borrowed
Following significant changes to the Code sections affecting alcoholic drinks advertising, the Notes in this area appear in significantly updated form. However, in an unprecedented move, the BACC has copped out by simply reproducing the Guidance on the new Code provisions published earlier by BCAP.
There are various other small-scale changes and by and large the revision job is a workman- like effort rather than any significant step change from the previous version.
Why this matters:
With the Broadcast Committee of Advertising Practice publishing more guidance in respect of Code compliance issues, questions were raised during the long wait for these new Notes of Guidance as to whether we actually needed them. These concerns have not necessarily been allayed completely, given for instance the BACC's 100% borrowing of BCAP's guidance on alcohol ads without adding any material gloss of its own, and its faintly spineless deferring to BCAP on interactive advertising. Nevertheless, it is good to have updated Notes of Guidance available once again and they will no doubt continue to be a useful adjunct to the Code and BCAP Guidance.